However, laypeople often put incorrect information in their copyright application, potentially delaying the processing of their application and jeopardizing the value of any resulting registration. One common source of error is the first publication date.

Has Your Work Been Published?

The first publication date is the date your work was first published anywhere in the world. But, what is publication? In copyright law, publication has a specific definition that differs from what you might find in a dictionary:

“the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication”

See the U.S. Copyright Office FAQ and Copyright Basics Circular.

Displaying your work to the public is NOT publication. Therefore, in my opinion, most blog articles are NOT published, although logically you might think otherwise if you did not know this definition. Making copies of your work and renting, leasing, or lending them, or selling or otherwise transferring ownership of them, is publication. Offering to distribute copies to a group for further distribution or display is publication.

What if I Can’t Remember the Exact Date of First Publication?

The date of first publication should be given in a month/day/year format. But sometimes, first publication occurred many years ago. What if you do not know the exact date? How can you give a month and day?

The Copyright Office instructs that if you do not know the exact date of first publication, you should give an approximate month, date, and year. See Copyright Office Help. So just try to pin the date down as best you can, and give your best guess.

In court, your copyright registration will serve as prima facie evidence of its contents, requiring a defendant to produce some evidence contesting the information it contains before you would need to produce evidence to support it.

Conclusion

Whether a work has been published, and if so on what day, can be a difficult question to answer, particular for certain types of works like online texts and computer programs. If you have questions about the date of first publication of your work, talk to a copyright attorney or at least give the Copyright Office a call or email.

Unfortunately, it is rarely possible to register multiple works together in a single copyright application.

Registering Collections of Unpublished Works

Unpublished works (essentially, works where copies have not been sold) can be registered together if the same person or entity owns every work in the collection and at least one author contributed to the creation of every work. See the U.S. Copyright Office help pages. In the typical situation where a single author/artist has created each of the works and retains ownership of them, this requirement is satisfied.

Page 9 of the Copyright Basics circular put out by the U.S. Copyright Office details additional qualifications:

1. The combined elements must bear a single title identifying the collection as a whole; and
2. The elements of the collection are assembled in an orderly form

Exactly what this means is not entirely clear. If you give the collection a title (e.g., “Photographs 2007″) and assemble the elements in an “orderly form” your collection would seem to qualify. These requirements to not appear to be a serious obstacle. The more detailed Copyright Office guidelines with examples do not even mention these other requirements.

In any case, the staff at the Copyright Office is quite helpful and usually responds quickly to questions sent by email and can also be reached by phone. Please contact them if you have any questions about your unpublished collection.

As a data point, when I went to the Copyright Office to register a large number of (unpublished) secure exams, the staff recommended that I file one application for each set of exams that were released together. I believe they could have all been included in one application, although that could make licensing and copyright management more difficult. If anyone has any input on this issue, please leave it in the comments.

Registering Collections of Published Works

A group of published works can also be registered together under certain circumstances. To be registered in a single application, the published works must all be:

1. First published on the same day;
2. First published in the same unit of publications; and
3. Owned by the same person or entity.

See the U.S. Copyright Office help pages. For examples, see here.  The first and third requirements are clear-cut, the second less so. Generally, two works are published in the same unit of publication if they are sold together as a single unit.

Conclusion

It is a good idea to consult a copyright attorney if you are weighing whether you can or should apply to register multiple works together. In a future post, I will discuss the advantages and disadvantages of registering multiple works with a single application.

Copyrights protect your creative works, such as books and other texts, recorded music, pictures and photographs, and movies and other audiovisual recordings. The owner of the copyright to a creative work has the right to prevent others from making or distributing copies of the work without permission.

Copyrights now arise automatically when such a work is created, without any action on the part of the author and without any cost. The copyright is initially owned by the person or people who made the creative work, unless the work was made as a “work for hire” for another entity, for example by an employee for his or her employer as a part of the employee’s job, in which case the employer owns the copyright.

Registering Your Copyright With the Government Costs Money

Unfortunately, copyrights are not worth much if they are not registered with the government. For example, you cannot bring a copyright infringement lawsuit based on an unregistered copyright. Therefore, there is no practical way to enforce your copyrights unless they are registered. I explain many of the benefits of copyright registration here.

It costs $35 to register a copyright online with the Copyright Office, or $50 to register a copyright using a paper Form CO with printed barcode, or $65 for registering a copyright using a simple paper form. Almost all copyright registrations can be applied for either online or using Form CO, depending on your preference. Beyond the cost savings, it is a good idea to file electronically because the wait time for a copyright registration is about one year longer for paper filings than for electronic filings.

Because there is a wait of up to 9 months for an electronic application to be processed and up to 22 months for a paper filing, it is best to apply for registration early. If you find it necessary to obtain a rush copyright registration in order to file suit against a copyright infringer, the cost of expedited processing of your application at the Copyright Office is $760.

A full list of copyright costs is available at the Copyright Office website here.

For Many Copyrights, the Cost of a Copyright Attorney’s Help is Justified

Of course, if you use a copyright attorney to help you with the application for copyright registration, you must add the attorney’s fees to the government costs given above. You can expect an attorney’s help with preparing and filing a copyright application to cost a minimum of a couple hundred dollars.

If you have some experience with filing copyright applications, and/or your copyright claim is very simple, you may be able to get away with not using an attorney. But, I would recommend using a copyright attorney at least for the first time you register a certain type of work, especially if there are any issues such as a work for hire, transfer of ownership, multiple authors, multiple works, a portion of the work you are not claiming copyrights to, etc.

A copyright attorney will save you a lot of time trying to figure out the Copyright Office system and will avoid costly mistakes that could result in delay of your copyright registration or necessitate a whole new application.

Thus, the total cost of a copyright registration including a copyright attorney’s help is about $200-300, or potentially much more if you choose to use an expensive attorney.

What Communication You Will Receive From the Copyright Office

You will not receive an acknowledgment that your application has been received (although if you file online, you will get an electronic filing receipt).  Rather, some time later after your application has been picked up by a registration specialist, you will either get a phone call or letter if further information is needed to process your application or a certificate of registration indicating that your work has been registered or a letter explaining why your application has been rejected.

When You Will Hear From the Copyright Office: Paper vs. Electronic Applications

So how long will it be before you hear from the Copyright Office?  The Copyright Office, like the Patent Office, has a substantial and fluctuating backlog of applications.  The time it takes for your application to be processed depends on the current backlog.  This post was written in July, 2009.  The goal is less than six months for paper applications and less than one month for electronic applications.

However, as an article in the Washington Post recently discussed (HT: Just-n-Examiner), the transition to the new electronic filing system has apparently created a backlog much larger than normal.  Paper applications are now taking about 18 months! Electronic applications are processed much faster- in about 6 months.  To encourage applicants to use the more efficient electronic filing system, paper filing fees are due to increase to $65 in August 2009, while electronic filing fees will remain $35.

These are good reasons to use the electronic filing system. If you are not comfortable using it, I recommend using the services of an attorney who specializes in copyright/intellectual property law.

Your Effective Copyright Registration Date

The Washington Post article I linked to also quotes a few artists, some of whom are delaying pursuing business opportunities until they receive their registration. I wish they had consulted a copyright attorney! It is probably not a good idea to delay for a year or more just to get your registration in hand. As long as all the required application elements are present and in an acceptable form, your copyright registration is effective the date the Copyright Office receives your application. This date is not affected by the amount of time it takes to process your application.

Of course, you may be concerned that you might have failed to supply all the required elements in an acceptable form, or that your application will otherwise encounter some sort of difficulty at the Copyright Office that results in a registration not being issued.  However, most applications for copyright registration are relatively straightforward and approved without any problems.

You have to balance the costs and benefits to you personally, but especially if you have used a qualified copyright attorney to file your application, I think  fear of a potential problem with your application will rarely outweigh the huge downside of delaying your business plans for 18 months or even for six.

Summary

If you use a copyright attorney and file your application online (electronically) today, you should get a registration in about 6 months, but the effective date of your registration will be today. You should discuss this with your copyright attorney, but it most likely is not worth waiting for your registration before getting serious with your creative work.

If you need to have the ability to sue immediately upon release of your work, it may be worth investing in a $685 special handling fee chargd by the Copyright Office to expedite your registration.

Any questions or comments?  Anything I left out?  Let me know in the comments.